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8 Right to Examine Witnesses

From: The Right to a Fair Trial in International Law

Amal Clooney, Philippa Webb

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 18 September 2021

Subject(s):
Right to fair trial — Derogations — Human rights remedies — Witnesses — Waiver — Remedies — Remedies and costs

This chapter studies the right to examine witnesses, which is fundamental to an effective defence. Allowing a prosecution witness to submit uncontested testimony, or depriving a defendant of the opportunity to call a witness who can provide exculpatory evidence, can lead to a serious miscarriage of justice. The right also protects the interests of victims, witnesses, and the broader public, because the questioning of witnesses can help to establish the truth and ensure the integrity of the judicial process. Under international human rights law, the right includes two components: the defendant’s right to examine witnesses testifying against them, and the right to call witnesses in their defence. But neither component of the right is absolute. This chapter addresses guidance from international bodies on acceptable limitations to the right, including areas of divergence relating to the use of anonymous witness testimony. It also highlights the challenge of obtaining remedies for such violations from international bodies given their deference to national courts on matters of evidence.

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